Court Battles

Letters suggest Capitol Police haven't met lawmakers' calls for transparency

The U.S. Capitol Police (USCP) has not followed through on efforts to improve transparency since Congress urged the department to do so in the days before January 6, according to letters from the USCP's lawyers that were obtained by The Hill.

Nearly a year after lawmakers pushed Capitol Police to adopt transparency measures, lawyers for the embattled agency in response to a lawsuit indicated they hadn't taken action.

"The Capitol Police has not yet created any documents regarding a 'policy and procedure that follows the spirit of the Freedom of Information Act,'" a USCP lawyer wrote in a letter that is set to be offered in court later on Friday and was provided to The Hill by a lawyer for freelance journalist Shawn Musgrave.

Musgrave filed a federal lawsuit against USCP and other legislative branch offices seeking, among other things, internal records related to Congress' directives.

The USCP faces a court deadline today to respond to Musgrave's lawsuit or move for it to be dismissed. The letters will likely be included in the USCP's filings.

An attorney for Musgrave said the responses represent an admission that the USCP has not complied with lawmakers' instructions to make the department more transparent.

"Short version, they were told to do two things by Congress related to transparency and they did neither," Kel McClanahan, Musgrave's lawyer and an adjunct law professor at George Washington University, told The Hill. "And if we hadn't filed this lawsuit, we never would've even known. That's the reason USCP needs to be made transparent, and it's now clear that it's going to have to be drastic, because they just ignore the less drastic efforts."

The police department has been embroiled in controversy in the months since January 6 over questions about its preparedness for events like the riot at the Capitol and its security measures. It has also long been criticized by government transparency advocates for not taking steps to open itself up to public oversight.

As an office within the legislative branch, USCP is exempt from the Freedom of Information Act (FOIA), a law that requires federal agencies to provide certain documents to the public upon request. Local and state law enforcement agencies in most parts of the country are subject to similar public records laws.

And unlike many government agencies, the USCP's inspector general does not usually publish its reports investigating potential shortcomings in the department.

In a 2020 House Appropriations Committee report attached to the 2021 funding bill, Congress said it "encourages" USCP to implement a public records disclosure process that "follows the spirit of the Freedom of Information Act."

It also ordered the USCP inspector general to review all of its reports from the past three years and tell Congress which ones could be made public within 90 days of the passage of the appropriations bill, which was signed by former President Donald Trump on December 27 of last year.

"The Committee believes that the Inspector General should make an effort to make appropriate reports public if they do not compromise law enforcement activities, national security, or Congressional security and processes without redaction," the House Appropriations report reads. "Therefore, no later than 90 days after the enactment of this Act, the Inspector General is directed to conduct a review of all issued reports within the previous 3 years and provide to the Committees a report listing which reports could have been made public."

In response to Musgrave's request for its report on which of its audits could be made public, an attorney for the inspector general's office said in a letter, "the requested report does not exist (i.e., it has not been created)."

Asked for comment by The Hill, the USCP's public informatiaon office said in an unsigned email that "Congress has not ordered us to do this, they have encourage [sic] us to do so" and provided a statement attributed to the USCP.

"The USCP has not ignored the Congressional request," the statement reads. "The Department is working on this and absolutely will provide the documents."

Asked in a follow-up email whether the statement applies to the legislative language aimed at the USCP inspector general, the public information office said it did not speak for the inspector general's office.

That office did not respond when asked for comment.

"I think that is telling that the Capitol Police are saying that they have not been 'directed' to do this," McClanahan said. "Things have changed since that initial report was written."

"The people who hold their purse strings have told them to do this," he added.

In a House Report that will likely be attached to a 2022 government spending bill that Congress is debating , lawmakers sharpened their language saying "the Committee directs the USCP to develop a policy and procedure for the sharing of information that follows the spirit of the Freedom of Information Act."

"This policy should be consistent with, and not interfere with, USCP's primary function of protecting the Congress," the report reads.

USCP Inspector General Michael A. Bolton has provided to Congress a series of "flash reports" in the months since January 6, identifying potential reforms and suggestions for the department.

The USCP said in a statement this week that it has been working to address recommendations in a recent flash report about the department's Dignitary Protection Division and has vowed to take on needed reforms in the wake of the January 6 riot.

"The United States Capitol Police welcomes all reviews into the January 6 attack and is answering the call for change," the statement reads.

The attack on the Capitol created turmoil for the agency. Steven Sund, who had served as USCP chief since 2019, resigned on January 7 amid calls for him and other leaders to step down in the immediate aftermath of the riot.

J. Thomas Manger, a former police chief in Maryland and Virginia, was sworn in as the agency's new top officer in July.

Musgrave's lawsuit argues that the public has a "common law right of access" to records from legislative branch agencies like USCP even if they are not explicitly covered by FOIA.

"The result of FOIA inapplicability, in combination with almost nothing requiring further transparency to the public from these offices, has roundly led to low transparency and high secrecy," the lawsuit reads. "This lack of transparency has become even more apparent in the face of increased public interest in congressional security in the wake of 6 January." 

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